CA Unpub Decisions

Petitioner, maternal grandparent, and de facto parent, Abigail C., contends the juvenile court erred in finding it was in the best interest of the minor to be removed from her home under Welfare and Institutions Code section 366.26, subdivision (n). (All statutory references are to the Welfare and Institutions Code.) Court deny her petition.

After we reversed the initial dispositional order due to inadequate Indian Child Welfare Act (ICWA) notices and remanded for proper notification, new notices were sent that were also inadequate. Although Turtle Mountain Band of Chippewa Indians (TMC) denied that the child was eligible for membership in response to both the initial and subsequent notices, all of these notices misidentified the childs Chippewa ancestor. TMC subsequently concluded that the child was eligible for membership, and TMC sought to intervene and to transfer jurisdiction to its tribal court. The juvenile court initially refused both requests. It found that the ICWA did not apply because the child was not a member of an existing Indian family. After parental rights were terminated following that finding, the parents again appealed. Court again reversed and remanded for compliance with the substantive provisions of the ICWA.

Merle Sandy died of cancer after a jury awarded him damages of more than $700,000. The sole defendant at trial was Exxon Mobil Corporation. After its motion for judgment notwithstanding the verdict was deemed denied by operation of law, Exxon appealed from the judgment and from the denial of its motion. Exxon contends that: (1) the trial court erred in denying its motion because there is not substantial evidence to establish liability; (2) the trial court committed instructional error; and (3) the trial court abused its discretion in limiting the testimony of two defense expert witnesses.
The first two of Exxons contentions are founded on the premise that Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659 (Kinsman) effected a radical restriction in the scope of the still recent decision in Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker). In Hooker, our Supreme Court concluded that an employee of an independent contractor may sue the hirer of the contractor if the hirers conduct affirmatively contributed to the employees injuries. In Kinsman, the court set forth the conditions under which the employee of an independent contractor may sue the hirer of the independent contractor when the hirer is the owner of real property having a hazardous condition that contributed to the employees injuries. Court conclude that Exxons premise is untenable in that nothing in Kinsman hints at any intent by the court to effect any curtailment of Hookers scope. Court further conclude that Exxons final contention is without merit. Court therefore affirm the judgment and the order.

A modification decision.

Jorge Evaristo Flores appeals his conviction for first degree murder (Pen. Code,[1] 187, subd. (a)) and assault with a semiautomatic firearm ( 245, subd. (b)), with true findings that he personally discharged a firearm causing death ( 12022.53, subd. (d)), and personally used a handgun ( 12022.5, subd. (a)(1)). He contends the prosecution committed misconduct in questioning him about his pre-arrest silence; the trial court erred in failing to separately instruct on the definition of a semiautomatic weapon; that his sentence violated Cunningham v. California; and the abstract of judgment must be corrected. Court affirm the judgment, and remand for resentencing.

A jury convicted defendant Lucciano Dupes of reckless driving while evading a peace officer (Veh. Code, 2800.2, subd. (a)), vehicle theft (Veh. Code, 10851, subd. (a)), and receiving a motor vehicle he knew to be stolen (Pen. Code, 496). The trial court sentenced him to state prison for a total term of two years. On this timely appeal, defendant raises a single claim of sentencing error; that the abstract of judgment should be amended to delete any reference to concurrent terms for the theft and stolen property counts. Court find no error, and affirm.

Plaintiff and appellant Indyway Investment is a trust that owned several properties in Long Beach. Indyway did not pay taxes on four of its properties. It initially lost two properties in a tax sale; that sale is not at issue in this appeal. The remaining two tax-defaulted properties were placed in a tax sale in 2003. Prior to the tax sale, the Los Angeles County tax collector sent notice to Indyway at: (1) the properties themselves; (2) the address for Indyway on file with the county assessor; and (3) an additional property owned by Indyway. The tax collector searched for other addresses for Indyway in various locations, including an internet Superpages search. While the tax collector did not send notice to a post office box claimed by Indyway as its official mailing address, Indyway did have actual notice of the 2003 tax sale. The tax sale proceeded, and Dennis Cooper purchased the properties at the auction. He received tax deeds for the properties. Indyway brought suit against Cooper and the County, seeking to cancel the tax deeds and quiet title to the property. Indyway took the position that the County had failed to comply with the statutory requirements for a proper tax sale of the property, particularly with respect to notice of the auction. Indyway further argued that its constitutional due process rights were violated by the Countys failure to give it notice of the auction at Indyways claimed official address. The matter proceeded to a bench trial. The trial court found in favor of the defendants, entering a judgment quieting title in favor of Cooper.[1] Indyway appeals. On appeal, we conclude that many of Indyways challenges to the Countys perceived lack of compliance with statutory prerequisites are simply not cognizable, due to the conclusive effect that must be given to the tax deeds. With respect to Indyways contention that it was deprived of property without due process, Court conclude that the trial courts finding that Indyway had actual notice is supported by substantial evidence, defeating Indyways assertion. Court therefore affirm.

Plaintiff and appellant Indyway Investment is a trust that owned several properties in Long Beach. Indyway did not pay taxes on four of its properties. It initially lost two properties in a tax sale; that sale is not at issue in this appeal. The remaining two tax-defaulted properties were placed in a tax sale in 2003. Prior to the tax sale, the Los Angeles County tax collector sent notice to Indyway at: (1) the properties themselves; (2) the address for Indyway on file with the county assessor; and (3) an additional property owned by Indyway. The tax collector searched for other addresses for Indyway in various locations, including an internet Superpages search. While the tax collector did not send notice to a post office box claimed by Indyway as its official mailing address, Indyway did have actual notice of the 2003 tax sale. The tax sale proceeded, and Dennis Cooper purchased the properties at the auction. He received tax deeds for the properties. Indyway brought suit against Cooper and the County, seeking to cancel the tax deeds and quiet title to the property. Indyway took the position that the County had failed to comply with the statutory requirements for a proper tax sale of the property, particularly with respect to notice of the auction. Indyway further argued that its constitutional due process rights were violated by the Countys failure to give it notice of the auction at Indyways claimed official address. The matter proceeded to a bench trial. The trial court found in favor of the defendants, entering a judgment quieting title in favor of Cooper.[1] Indyway appeals. On appeal, we conclude that many of Indyways challenges to the Countys perceived lack of compliance with statutory prerequisites are simply not cognizable, due to the conclusive effect that must be given to the tax deeds. With respect to Indyways contention that it was deprived of property without due process, Court conclude that the trial courts finding that Indyway had actual notice is supported by substantial evidence, defeating Indyways assertion. Court therefore affirm.

Timothy C. (hereinafter appellant) appeals from the juvenile courts order sustaining the robbery allegation against him and the juvenile courts failure to give him credit for his predisposition days in custody. Court affirm.

Samuel Hamlet appeals a judgment following conviction of inflicting physical injury upon a cohabitant. (Pen. Code, 273.5, subd. (a).) Court conclude that the trial court did not err by not instructing with lesser included offenses, and affirm.

Defendant and appellant Vanessa Aguirre contends (1) there was insufficient evidence of force or fear to support her conviction of second degree robbery and (2) the trial court did not sufficiently respond to a jury question. Court affirm.

Mother Brenda J. appeals from the courts order making her then 16 (and now 17) year old daughter a dependent of the court under Welfare and Institutions Code section 300. Court affirm.

Jose O. (father) appeals from an order of the juvenile court terminating his parental rights to his son and daughter, Christopher and Selena. He contends the juvenile court failed to exercise its independent discretion to consider placing the children with his mother, their paternal grandmother, Ana A.[2] He also contends the court erred by failing to apply the parental relationship exception to the termination of parental rights. (Welf. & Inst. Code, 366.26, subd. (c)(1)(A).) Court affirm the order.

In this dependency case (Welf. & Inst. Code, 300 et seq.),[1]Dolly B., mother of the minor child Scott B. (Mother and Scott, respectively), appeals from an order that terminated a home of parent order under which Scott had been living with her. The challenged order also placed the minor in the care of the Los Angeles County Department of Children and Family Services (the Department) for suitable placement, and provided that Mother would not receive reunification services. The order was made at a hearing at which a section 342 subsequent petition was adjudicated and sustained, and a disposition order made. Mother contends there is insufficient evidence in the record to support (1) the trial courts finding of jurisdiction on the subsequent petition and (2) the courts disposition order that removed the minor from her home. She further contends the trial court abused its discretion when it denied her reunification services. Our review of the record convinces us that Mothers challenges are not well taken. Court therefore affirm the challenged order.